Category Archives: Crimes and U.S. Immigration

When a foreign national is ordered deported from the U.S. (usually because the person was undocumented or committed some violation of the law), the one and only “perk” is a free trip to his or her home country. It’s a trip reportedly taken by a record 409,949 people in the 2012 fiscal year.

If my “free trip” comment sounds flippant, let me tell you a story I once heard from an immigrant rights advocate. He had a client from Mexico who would spend most of his time in the U.S. but then, when ready for a visit home, turn himself into the immigration authorities for deportation. Free ride! (The fun ended after Congress tightened up on the penalties for reentry after deportation.)

In any case, we’re not talking about luxury travel here. Immigration and Customs Enforcement (ICE) typically flies deportees to the capital city of their home country, sometimes sedated or in manacles. There, if they’re lucky, their country’s government may provide them with van rides or other services. If not, they’re on their own — often after years or decades away.

Mexico is, however, a different case. Because it shares a land border with the U.S., ICE policy has, in the past, been to bus deportees to towns just across the border, such as Tijuana or El Paso. Recently, however, ICE has begun flying some deportees to Mexico City. They claim that this policy protects deportees from targeting by kidnappers and smuggling gangs who operate along the border, and say it will reduce return trips to the United States.

Critics of the policy note, however, that it is costly for the U.S. and has not resulted in any apparent reduction of attempts to unlawfully cross the U.S. border.

With the recent announcement by the Transportation Security Administration (TSA) that its airline security staff discovered a record-breaking 65 firearms in carry-on bags last week, it seems like a good time to remind visa and green card holders of an important fact: Firearms crimes can get you deported from the United States. “Forgetting” that you packed a gun (which many of the people caught claimed) is not necessarily going to help you, either.

First, the basic TSA rule: You can carry a firearm in your checked baggage if you advise the airline first. But you cannot bring a weapon, explosive, or incendiary with you onto the plane, including in any carry-ons or other accessible property. Failure to comply with this is a civil violation, and you could be fined.

A civil violation is not, however, a crime; and U.S. immigration law specifies that anyone “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device . . . in violation of any law is deportable.” (See Immigration and Nationality Act Section 237.)

But every airport is also located in some U.S. state — and state law may, in fact, criminalize the gun-toter’s actions. The person could be arrested for crimes with such descriptions as “carrying a concealed weapon in a restricted area,” or “unlawful possession of a weapon.” And those crimes could definitely make the person deportable. For more information on what it means to be “deportable,” and how to defend yourself in immigration court proceedings, see the “Crimes and U.S. Immigration” portion of Nolo’s website.

Noferi, a J.D. from Stanford who teaches immigrants’ rights at Brooklyn Law School, points to a little-noticed piece of the proposed Senate bill: one that would provide government-paid legal representation to some noncitizens in removal proceedings, namely unaccompanied children, people with a serious mentally disability, or those who are “particularly vulnerable” compared to others in the same situation. (See pp. 567-568 of the bill for the actual language.)

For my money, nearly every noncitizen who can’t afford a lawyer is “particularly vulnerable.” They often don’t speak much English, they’re unfamiliar with the U.S. legal system, and they’re up against a body of law that’s confusing, counterintuitive, and often bizarrely punitive.

Noferi, however, focuses on detained immigrants as especially high on the vulnerability list. His description of the detention centers in which tens of thousands of immigrants spend months and years of their lives waiting to see a judge is apt, noting that they are: “routinely denouncedforsubstandardconditions, such as moldy food, poor medical care, overcrowding, excessive force, shackles, and solitary confinement.” Like all generalizations, this doesn’t even begin to convey the awfulness of putting human beings who have committed no crime into a prison being run by people who treat them as if they had. (I’ve visited these places. They suck.)

Let’s hope this portion of the Senate bill survives intact — and is eventually expanded.

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?“

The New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009 bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Congress, the Supreme Court, and the American public have always been unsympathetic to immigrants who commit crimes in the United States. That’s not surprising nor disturbing in and of itself.

However, the Supreme Court’s recent decision in Chaidez v. United States is an uncomfortable reminder that this harshness extends to immigrants who may not have actually committed crimes, or whose crimes were so minor that even U.S. laws would not ordinarily deem them deportable.

Here’s the background on this situation: Because of wrong advice from criminal defense lawyers who didn’t fully understand the immigration laws (which, in these lawyers’ defense, are insanely tough to understand), many immigrants have pled guilty to, or otherwise failed to fully defend themselves against conviction for a crime — not realizing that the conviction’s presence on their record would make them deportable.

For instance, a criminal lawyer might reasonably tell an immigrant defendant, “Look, we got a great offer from the prosecutor — you plead guilty to a misdemeanor, and you’ll avoid jail time and a trial.” What the criminal lawyer may not know is that even some misdemeanors are considered “aggravated felonies” or “crimes of moral turpitude” under U.S. immigration law — either of which can make even a green card holder deportable from the United States. (See “Crimes That Will Make an Immigrant Deportable” for details.) Yet, relying on the lawyer’s advice, the immigrant might agree to plead guilty, rather than pushing for a trial that might perhaps result on a “not guilty” verdict.

The Supreme Court made some progress toward resolving this problem in a case called Padilla v. Kentucky. There, the Court held that criminal defense attorneys must inform noncitizen clients of the risks of deportation arising from guilty pleas — and if they didn’t, those convictions could later be challenged. That raised hopes that not only immigrants currently fighting deportation or a criminal conviction, but those whose criminal convictions had already become final could go back and have the case overturned.

Those hopes were dashed by the Chaidez case. The Padilla rule, according to the Court, does not apply retroactively. An immigrant with a final conviction for a crime — whether it’s final because all appeals are over or because the immigrant did not file an appeal within the time period allotted — must live with the consequences of that conviction. For more on the immigration consequences of criminal acts, see Nolo’s articles on “Crimes and U.S. Immigration.”

Being summoned for immigration court proceedings can be terrifying, whether you are in the U.S. without documents or are a green card holder whom the U.S. government believes should be deported.

But whatever fears you may have about the process, there’s little need to fear that anything will happen overnight. This is particularly true if you have a defense to removal (and will not simply request “voluntary departure” at the earliest opportunity), which will justify holding a full (“merits”) hearing.

The reason? The immigration court system is getting more and more backed up with cases. According to statistics kept by TRACImmigration, by September of 2012 the backlog had grown to an all-time high of 325,044 cases nationwide. That’s 23.7% more people than were awaiting the conclusion of their court cases in September 2010.

This backlog has translated into waits of up to a year or more, depending on the type of case. The average wait has reached around 203 days to resolve cases that ended with removal orders and 781 days to resolve cases that ended with relief orders. (To check on details in your region, go to TRACImmigration’s “Immigration Court Backlog Tool.”

Part of the reason that such backlogs grow is that, if the person in proceedings (usually called the “alien”) has a lot of information to present to the immigration judge (such as personal testimony and that of witnesses), it’s unlikely that the merits hearing will be concluded in one day. And because the calendar is jam-packed, the judge will not, at the end of the first day’s hearing, say “Come back tomorrow.” Instead, the judge will put a new or “continued” court date on the calendar for many weeks or months into the future. (Expect weeks rather than months if you applied for asylum and were referred for immigration court proceedings.)

It can start to feel all very casual, as if the U.S. government really isn’t interested in finishing up your hearing. But don’t let this make you careless about keeping track of upcoming court dates, and arriving well in time. One missed court date and you could find yourself with an “order of deportation” on your record, and no further opportunities to defend yourself in court. See Nolo’s articles on “Immigrants in Deportation or Removal Proceedings” for more information.

At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”

I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.

1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).

2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.

As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.

Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.

A recent case out of the Third Circuit Court of Appeals, called HECTOR DURAN-PICHARDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, is a good reminder of why attending and passing your naturalization interview (for U.S. citizenship) is not enough by itself. You’ve got to actually complete the oath ceremony before you will be considered a U.S. citizen — and receive the benefits and protections that come with that status.

Mr. Duran-Pichardo, originally from the Dominican Republic, became a U.S. lawful permanent resident in 1981. He applied for naturalization in 1997, and attended his naturalization interview in 1998. Apparently, he passed the examination, though he was given only a document stating that the “INS will notify you later of the final decision on your application.”

The trouble arose when the INS never got around to sending him that “decision,” much less an appointment for his oath ceremony. Mr. Duran-Picardo tried to call the agency many times, but says he ultimately was told that all or part of his naturalization file had been lost. At that point, he seems to have given up.

That was a bad idea, especially in light of Mr. Duran-Pichardo’s later activities: In 2008 (nearly ten years later), he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine. The sentence was 51 months’ imprisonment.

Later in 2008, the U.S. government began removal proceedings against Mr. Duran-Pichardo, alleging that he was deportable both due to the controlled substance violation and as an aggravated felon. In his defense, he claimed that he was either a U.S. citizen or should have been, given that the U.S. government itself was at fault in failing to finalize his naturalization application.

That argument got him nowhere. As is typical in cases where the U.S. immigration bureaucracy is at fault, it takes no responsibility for the consequences. This also illustrates the severe immigration consequences of any type of drug crime.

This case might not create much sympathy or worry for other U.S. citizenship applicants who think, “No problem, I’m not planning to sell drugs.” Nevertheless it’s an important reminder of the need to track the scheduling of your citizenship oath ceremony, and attend it when scheduled. Far less severe actions than a drug crime can make a person deportable — for example, see my article, “Can I Really Be Deported for Failing to Advise USCIS of My Change of Address?” What’s more, you need to maintain your eligibility for citizenship right up to the day of the oath ceremony. The longer it gets put off, the greater the risk that something will happen to affect your eligibility.

If you had to guess, would you think that being convicted under California’s Penal Code Section 32 for an after-the fact “accessory to a felony” would itself be considered an aggravated felony — and therefore cause someone with a green card to lose his or her permanent resident status and be deported?

Section 32 of the California Penal Code makes it a crime when someone:

"after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that
said principal may avoid or escape from arrest, trial, conviction or
punishment . . . ."

In other words, the convicted person wasn’t part of the original crime, but seems to have somehow helped the criminal(s) hide out afterwards.

Mr. Valenzuela Gallardo had received a 16-month prison sentence. And, the B.I.A. reasoned, the California statute’s specific mention of the convicted person’s intent to help a felon escape capture brings it squarely in line with the definition of obstruction of justice.

I don’t know the history of this case — namely what type of legal help the defendant had early on — but may well be a classic example of why immigrants to the U.S. should hire an immigration lawyer, not just a criminal lawyer, the minute they find themselves in trouble with the law. With some negotiation, it is sometimes possible to obtain a conviction that does not lead so directly to deportation.

About Ilona Bray

The blog is written by Ilona Bray, a Nolo editor and the author of Becoming a U.S. Citizen. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Among Ilona’s most memorable volunteer experiences were passing out HIV+ literature in Guatemala, researching U.N programs as a legal intern for Amnesty International in London, and representing (pro bono) disabled, low-income people seeking Social Security benefits in Washington, DC.